Citation Nr: 0630479
Decision Date: 09/28/06 Archive Date: 10/04/06
DOCKET NO. 04-38 499A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Whether the veteran has basic eligibility for educational
assistance under Chapter 30, Title 38, United States Code.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. J. Alibrando, Counsel
INTRODUCTION
The veteran served on active duty from November 1996 to April
1999.
This case came to the Board of Veterans' Appeals (Board) on
appeal from a December 2003 decision of the Department of
Veterans Affairs (VA) Atlanta, Georgia, Regional Office (RO).
A hearing was held in October 2005 before the undersigned
Veterans Law Judge sitting at the RO.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
A review of the record shows that the veteran had active
service from November 17, 1996 to April 30, 199, completing
29 months and 14 days of her obligated 3 year period of
active duty. The DD Form 214 shows that the veteran received
an honorable discharge. The narrative reason for separation
is listed as Discharge Involuntary - Determination of Service
Secretary. The separation code was listed as JFF2.
The RO determined that the veteran was not eligible for
Chapter 30 educational assistance based on a finding that the
veteran served 29 months and 14 days of a 3 year enlistment
and that the separation was for the convenience of the
government. The October 2004 statement of the case listed
the provisions of 38 C.F.R. § 20.7042 as the basis for the
denial.
However, the RO apparently did not consider whether the
veteran meets the criteria for eligibility for Chapter 30
benefits under 38 C.F.R. § 21.7045(a) and (b) (2006).
Under the provisions of 38 C.F.R. § 21.7045, VA has provided
alternative eligibility requirements for educational
assistance under the Chapter 30 program for those
involuntarily separated with an honorable discharge, apart
from the provisions examined by the RO in its denial. The
data on her DD Form 214, suggest possible application of 38
C.F.R. § 21.7045.
In relevant part, the regulation provides that a service
member who was involuntarily separated will be eligible for
educational assistance if he was on active duty either on
September 30, 1990, or after November 29, 1993, and after
February 2, 1991, was involuntarily separated, as that term
is defined in Title 10 U.S.C. § 1141 with an honorable
discharge. 38 C.F.R. § 21.7045 (2006). The Board observes
that under 10 U.S.C. § 1141, by "involuntarily separated" is
generally meant that the individual is discharged under other
than adverse conditions, as characterized by the service
department. 10 U.S.C. § 1141.
In this case, it is unclear from the record, whether the
veteran's involuntary discharge, under the Separation Code
JFF2, is considered a separation under adverse conditions.
This is the key question in this case that needs
clarification.
After a careful examination of the facts in this case in
light of applicable regulation, the Board is of the opinion
that this matter should be remanded to the RO for its initial
consideration of the provisions of 38 C.F.R. § 21.7045. In
this regard, it would be helpful to obtain the veteran's
personnel records and associate with the record prior to
readjudication of the claim.
The Board notes that the veteran has not been provided with
notice that complies with the Veterans Claims Assistance Act
of 2000 (VCAA). In order to comply with the VCAA notice
requirements of 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b)(1), VA must provide affirmative notification to
the claimant prior to the initial decision in the case as to
the information and evidence that is needed to substantiate
the claim and who is responsible for providing it. The duty
to notify cannot be satisfied by reference to various post-
decisional communications, such as the notification of
decision, the SOC, or the SSOC from which the claimant might
have been able to infer what evidence was lacking. See
Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006).
Appropriate notice should be furnished to the veteran.
Accordingly, the case is REMANDED for the following action:
1. The RO should send the veteran a VCAA
notice under 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b), that includes notice
of the evidence needed to substantiate a
claim of basic eligibility for
educational assistance under Chapter 30,
Title 38, United States Code.
2. The RO should obtain the veteran's
service personnel records and associate
them with the existing records.
3. The RO should readjudicate the claim,
to include consideration as to the
applicability of 38 C.F.R. § 21.7045. If
any such action does not favorably
resolve the claim, the RO shall issue the
veteran and her representative a
Supplemental Statement of the Case,
providing her with the laws and
regulations relevant to his claim, to
include 38 C.F.R. § 21.7045. The
statement of reasons and bases for the
denial of the veteran's claim should
include a discussion of whether the
Separation Code JFF2 is a bar to
eligibility for Chapter 30 benefits and
whether the veteran's involuntary
separation is considered "under adverse
conditions" as that term is defined.
Thereafter, the case should be returned
to the Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).